422 P.3d 18
Haw.2018Background
- In 1989, 81‑year‑old Edith Skinner was found dead from manual strangulation in her Makua Ali‘i senior‑center apartment; semen and a dark pubic hair were recovered. DNA from the semen later matched Gerald Austin in 2011–2012, and he was indicted for second‑degree murder in 2012.
- A neighbor, Anne Wanous, gave contemporaneous out‑of‑court statements that she saw a dark‑complexioned male leave Skinner’s unit early the morning of the death; Wanous died in 1991 and could not testify at trial. Her sketches and recorded interview contained ambiguities and were not used in HPD bulletins.
- At trial Austin admitted having had consensual sex with an older Makua Ali‘i resident in 1989 but denied killing Skinner; the jury convicted him of second‑degree murder and found the victim was over 60. He was sentenced to life without parole under the extended‑term statute.
- Pretrial, Austin moved to (1) exclude references to Skinner as the “victim,” and (2) admit Wanous’s statements; the court allowed the term “victim” but excluded Wanous’s statements as hearsay. The court also refused lesser‑included instructions (manslaughter/assault).
- Austin appealed raising five errors: victim labeling, exclusion of Wanous’s statements (hearsay/Chambers), refusal of lesser‑included instructions, prosecutorial misconduct in closing/rejection of new trial, and that his life‑without‑parole sentence was an ex post facto application.
Issues
| Issue | State's Argument | Austin's Argument | Held |
|---|---|---|---|
| Use of the term “victim” at trial | Permitted where there was no dispute that Skinner was murdered and issue was perpetrator identity | Use of “victim” prejudicially implies defendant's guilt; Mundon requires good reason to allow term | Court: No abuse of discretion; here identity (not that a crime occurred) was the disputed issue, so term did not unfairly imply guilt |
| Admissibility of Wanous’s out‑of‑court statements | Statements lacked sufficient trustworthiness/corroboration; excluded under HRE 804(b)(5) and 804(b)(8) and not saved by Chambers | Statements were recent perceptions/corroborative and critical to defense; exclusion violated hearsay rules and due process (Chambers) | Court: Affirmed exclusion — many indicia of unreliability (fleeting view, darkness, leading questioning, sketches based on a "feeling"); Chambers inapplicable because statements lacked persuasive assurances of trustworthiness |
| Lesser‑included offense instructions (manslaughter/assault) | Evidence supported intentional strangulation or no culpability by Austin; no rational basis to find only reckless conduct | Evidence (no forced entry, no struggle) supported theory of reckless causation or lesser offense; jury should have been instructed | Court: No error — record provided no rational basis to convict of reckless manslaughter or assault instead of second‑degree murder |
| Prosecutorial misconduct/new trial (multiple closing‑argument claims) | Prosecutor’s comments were permissible inferences, responsive to defense, and harmless where brief or cured by instructions | Prosecutor improperly shifted burden, misstated elements, repeatedly called Austin a "liar," injected facts not in evidence, and urged haste; cumulative misconduct warranted new trial | Court: Majority denied new trial. Some fleeting improper comments (alibi/corroboration, urging speed) amounted to misconduct but were harmless beyond a reasonable doubt given instructions, context, and evidence strength; calling witness a liar was permissible where supported by record |
| Ex post facto challenge to life‑without‑parole sentence | Sentence under HRS §706‑661 (as amended) authorized extended life term | Applying post‑1999 amendment to a 1989 offense is retroactive and violates ex post facto clause and HRS §1‑3 | Court: Vacated sentence and remanded for resentencing under the law in effect in 1989 (ex post facto violation) |
Key Cases Cited
- State v. Mundon, [citation="129 Hawai'i 1"] (Haw. 2012) (use of term “victim” generally improper unless justified; admonition against prosecution referring to complaining witness as victim)
- State v. Nomura, [citation="79 Hawai'i 413"] (Haw. App. 1995) (referring to complaining witness as “victim” in jury instruction improperly comments on evidence)
- Chambers v. Mississippi, 410 U.S. 284 (U.S. 1973) (due‑process exception may admit reliably corroborated hearsay critical to defense)
- Hew v. Aruda, 51 Haw. 451 (Haw. 1969) (foundation for HRE 804(b)(5): exceptions for deceased declarant when circumstances guarantee trustworthiness)